The Importance of Legal Context and Other Considerations in Assessing the Suitability of Negotiation, Mediation, Arbitration and Litigation in Resolving Effectively Domestic and International Disputes (Employment Disputes and Beyond)

Authors

Guido Carducci

Document Type

Symposium

Abstract

(Excerpt)

The six sets of considerations examined in this Article take such variety into account and focus on factors that are meaningful for all disputes, though in different proportions. The minimum requirement for the purpose of such considerations is that the dispute relies on a disagreement in fact and in law, not merely in fact. In today’s highly regulated society, the law is most often present although an individual may not perceive it correctly in facing a dispute.

The following six sets of considerations include, it is submitted, most of the essential factors that enable users to understand what dispute resolution mechanism fits best, or accommodates the most, their expectations of the dispute resolution process in light of the circumstances that, in fact and in law, shape their dispute and the operation of each dispute resolution mechanism they consider for their dispute.

As a final introductory note, in this Article that concerns both common and civil law jurisdictions: the terms “law” or “legal rules” include legislation (primary and secondary or delegated), common law, equity (“principles of equity” or “equitable remedies”), and case law, beyond the common law - civil law divide. That being said, obviously each national legal system (French Law, Italian Law, et cetera) defines what its sources of law and of legal rules are.